"The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion....[A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect." Justice Hugo Black, Bridges v. California (1951)

Friday, October 10, 2014

Federal District Court Judge Richard Young yesterday handed down an opinion striking down Marion County's process for electing judges as a violation of the First Amendment.

That process involved Republicans and Democrats each nominating exactly
half the candidates and all the candidates so nominated automatically
winning the general election. Thus, if you were a voter who only cast a
ballot in the general election, you'd have no say in the selection of
Marion County judges.

The decision is likely to be appealed to the Seventh Circuit. I think,
however, it is unlikely to be overturned. If it is not overturned that
means the Indiana General Assembly will need to revisit the issue of how
the judges are selected in Marion County. The legislature can go to an
election process in which all judges are elected county-wide which
would likely result in all Marion County judges being Democrats. That's
not likely to happen though with a Republican legislature and a
Republican governor. Or the General Assembly can opt to elect judges by
districts or install a so-called merit system which has been done in
some counties. Unfortunately, merit systems does not eliminate the
inevitable politics involved in judicial selection. It often just puts
those politics behind closed doors.

Besides the issue of electing Marion County judges in the general
election, you have the related issue of judicial slating in Marion
County, which involves the payment of hefty fees to party bosses in
order to receive the party organization's endorsement. In January of
2013, I reviewed campaign reports and summarized those payments as follows:

To get slated, Republican judge candidates had to pony up $13,100 apiece
before the slating convention. (Democrats had to put up a similar
amount.) Following the election, the Republican judge candidates are to
pony up another $10,000 apiece.

In 1992, the JQC had opined
that the practice of paying mandatory slating fees was a violation of
the Judicial Code of Conduct. Twenty years later I asked the JQC to
revisit in light of the fact that the payment of these fees as evidenced
by twenty years of history showed they were mandatory and thus a
violation of the Judicial Code of Conduct. The JCQ in a letter dated April 2012,
confirmed its earlier opinion and then reiterated a set of factors it
would look at to determine if the fees paid were mandatory:

While not an exhaustive list, some of the factors the Commission
believes are important to evaluate when considering whether a payment is
voluntary include the timing of the payment, particularly if it must
be paid by a certain time, such as before a slating convention, whether
anyone from the political party communicated to the judicial candidate
that the payment is expected, and whether the amount contributed by all
judicial candidates during an election cycle is the same (assuming o
further explanation for the coincidence.

All of the endorsed candidates paid a $12,000 slating fee (I found
out later that there was an additional fee paid that had to be paid
after the election.)

All paid the slating fee before the slating convention.

The party communicated to the candidates the amount of the slating fee before the slating convention.

Judicial candidates, like candidates for other offices, were not
provided a list of voters at the slating convention until the slating
fee was paid.

The slating fee equals 10% of a judges annual salary. Slating fees
always are 10% of the annual salary of the office that is sought.

The party, like with all slating contests, refunds 80% of the
slating fee for judges if they're not slated and do not run in the
primary. If they run in the primary, the party keeps 100% of the
$12,000. If it were a voluntary political contribution, why would they
ever refund the money?

I understand from very good sources that a complaint against the
Marion County slating process remains pending before the JQC and was put
on hold pending the outcome of yesterday's case. Hopefully the JCQ
will now find the slating fees that have been paid to be a violation of
the Judicial Code and have that decision ratified by the Indiana Supreme
Court. I think that is quite likely coming down the road.

Meanwhile, in light of yesterday's decision, the Indianapolis Bar Association issued a statement yesterday, published on the Indiana Law Blog website:

The Indianapolis Bar Association (“IndyBar”) is reviewing Judge Young’s
decision holding unconstitutional Marion County’s current system for
selecting judges. For more than twenty years, the IndyBar has taken an
active interest in the best methods of selecting judges in Marion
County. Through its Attorneys for an Independent Bench (AIB) Committee,
the IndyBar intends to offer its assistance in crafting a remedy to
address the Judge’s decision. Marion County has been well served by its
excellent judges over the years, and inclusive engagement of all
interested parties in creating a new judicial selection method will
ensure that continues.

You have to remember the Indianapolis Bar Association has been silent on any sort
of meaningful reform of the selection process for Marion County Judges, has
refused to condemn slating, including the payment of slating fees in
violation of ethical rules, and has actively provided cover for candidates handpicked by party bosses through the use of an easily manipulated survey process. And now the Indianapolis Bar Association wants
to be a player in reforming the system?

Note: Special thanks to Indiana Law Blog for providing the link to the Indianapolis Bar Association statement and Judge Young's opinion.

Friday, October 3, 2014

When I protested earlier to the Indiana Supreme Court that the Disciplinary Commission deliberately ran up an expense bill on me to force me out of practicing law, I don't think the justices believed me. So I decided to undergo the painstaking process of going
through the docket of each disciplinary case over the last two years to
determine how much in expenses each disciplined attorney was ordered to
pay. An order often detailed in a docket entry contains the
breakdown of the following types expenses attorneys in disciplinary
cases are generally ordered to pay:

For the attorneys with the most expenses, I documented the discipline the attorney ended up receiving. There were a few occasions when the dollar amount on expenses was not spelled out or there did not appear to be any mention of expenses in the docket. It should also be noted that the designation WAR means suspended "with automatic readmission" and WOAR means "without automatic readmission," i.e. attorneys have to reapply for readmission and get approval. For many attorneys a WOAR designation means they will neer practice law again.

Upon completion of my survey, it turns out my instincts were right. The Commission ran up more expenses prosecuting me for an email than any other attorney.

Name

DC Inv. Exp.

Clerk-Court Costs

SCT -HO & Ct Rep.

Total

Result

Ogden, Paul K.

5360.34

250

14813.20

20423.50

Susp 30 days WAR

Geller, Steven B.

8465.48

250

7740

16455.50

Disbarred

Haigh, Christopher E.

5549.75

250

9880.2

15680.00

Disbarred

Usher IV, Arthur J.

7026.69

250

4380

11656.70

Susp 3 years WOAR

Denney, Louis W.

4717.1

250

5350

10317.10

Susp 3 years WOAR

Benson, Craig R.

2749.04

250

6871.08

9870.12

Susp 180 days WOAR

Dempsey, Gordon B.

3265.73

250

4125.16

7640.89

Susp 3 years WOAR

Stern, Patrick H

3527.71

250

1933.05

5710.76

Susp 18 mos WOAR

Smith, Joseph Stork

2463.83

250

2008.3

4722.13

Disbarred

Alexander, Michael

243.63

250

3850

4343.63

Susp 60 days WAR

Schalk, David E.

1096.64

250

2953.84

4300.48

Susp 9 mos WOAR

Snulligan, Octavia F.

1527.16

250

2445.35

4222.51

Susp 30 Days WOAR

Coleman, Jesse L.

1003.9

250

2075

3328.90

Not Reviewed

Ross, Roberta

722.63

250

1775

2747.63

Not Reviewed

Cole, Scott C.

2079.2

250

160

2489.20

Not Reviewed

Atkins, Trezanay M.

306.96

250

1910

2466.96

Not Reviewed

Baker, Patrick V.

2250.81

0

0

2250.81

Not Reviewed

Collins, Robert L.

489

250

1425

2164

Not Reviewed

Frazier, Ronald W.

1863.09

250

0

2113.09

Not Reviewed

McClure, Alfred

1092.39

250

440

1782.39

Not Reviewed

Clark, Timothy V.

937.63

250

450

1637.63

Not Reviewed

Heck, Jeffrey D.

688.73

250

690

1628.73

Not Reviewed

Beal, Shane E.

1197.39

250

0

1447.39

Not Reviewed

Kahn, Stanley

1096.8

250

0

1346.8

Not Reviewed

Voils, Alex R.

1082.55

250

0

1332.55

Not Reviewed

Weldy, Ronald E.

982.27

250

0

1232.27

Not Reviewed

Kinnard, Terrence

811.46

250

0

1061.46

Not Reviewed

Jones, Carl C.

679.8

250

0

929.80

Not Reviewed

Devlin, Maureen

210

250

420

880.00

Not Reviewed

Suarez, Edward J. Martinez

540

250

0

790.00

Not Reviewed

Brejensky, Steve L.

36.18

250

458.35

744.53

Not Reviewed

Potthast, Lindsay C.

0

250

469.25

719.25

Not Reviewed

Woodmansee, Todd A.

193.91

250

240

683.91

Not Reviewed

Holcomb Jr., Noah

21.85

250

350

621.85

Not Reviewed

Schrems, Patrick M.

71.2

100

417.64

588.84

Not Reviewed

Randolph, Lonnie M.

133.4

250

185

568.40

Not Reviewed

Criss, Jon A.

0

250

300

550

Not Reviewed

Godshalk, Randy A.

0

250

300

550

Not Reviewed

Wallace III, William R.

288.28

250

0

538.28

Not Reviewed

Stiles, Randall B.

530.55

0

0

530.55

Not Reviewed

Johnson, Amanda

524.44

0

0

524.44

Not Reviewed

Raventos, Peter S.

524.44

0

0

524.44

Not Reviewed

Sokolowski, David J.

524.44

0

0

524.44

Not Reviewed

Stiles, Randall B.

524.44

0

0

524.44

Not Reviewed

Stuard, F. Scott

524.44

0

0

524.44

Not Reviewed

Stuard, F. Scott

524.44

0

0

524.44

Not Reviewed

Weber, Brad J.

524.44

0

0

524.44

Not Reviewed

Roby, Veronica M.

523.72

0

0

523.72

Not Reviewed

Stuard, F. Scott

518.33

0

0

518.33

Not Reviewed

Stoops, Eldon E.

0

250

267.42

517.42

Not Reviewed

Oulette, Steven J.

512.96

0

0

512.96

Not Reviewed

Heck, Jeffrey D.

512.22

0

0

512.22

Not Reviewed

Johnson, Elton D.

512.22

0

0

512.22

Not Reviewed

Lipsky, Michael L.

512.22

0

0

512.22

Not Reviewed

Snulligan, Octavia F.

511.9

0

0

511.90

Not Reviewed

Brenman, Jeremy S.

511.5

0

0

511.50

Not Reviewed

Brenman, Jeremy S.

511.5

0

0

511.50

Not Reviewed

Johnson, John A.

506.11

0

0

506.11

Not Reviewed

Nelson, John W.

0

250

250

500

Not Reviewed

Robson, Ray W.

0

250

250

500

Not Reviewed

Joyce, John M.

38.63

250

210

498.63

Not Reviewed

Followell, Douglas S.

0

100

381

481

Not Reviewed

Auger, Jennifer J.

0

250

155

405

Not Reviewed

Auger, Michael R.

0

250

155

405

Not Reviewed

Stoops, Eldon E.

0

250

143.52

393.52

Not Reviewed

Barker, Joseph B.

140.5

250

0

390.50

Not Reviewed

Aguilar, Marisa

0

250

140

390

Not Reviewed

Hittle, Lori Ann

0

250

104

354

Not Reviewed

Okanlami, Olubunmi O.

0

250

100

350

Not Reviewed

May, Dan J.

91.52

250

0

341.52

Not Reviewed

Hogan, Frank W.

49.59

250

0

299.59

Not Reviewed

Brenman, Jeremy S.

0

250

0

250

Not Reviewed

Carr, Bruce A.

0

250

0

250

Not Reviewed

Compton, Julia N.

0

250

0

250

Not Reviewed

Corbitt, David E.

0

250

0

250

Not Reviewed

Corcella, Ellen M.

0

250

0

250

Not Reviewed

Crawford, Lisa M.

0

250

0

250

Not Reviewed

Eckert, John Carroll

0

250

0

250

Not Reviewed

Eyster, Randy C.

0

250

0

250

Not Reviewed

Freeman, Timothy

0

250

0

250

Not Reviewed

Garcia Jr., Juan Carlos

0

250

0

250

Not Reviewed

Hedges, Christopher c.

0

250

0

250

Not Reviewed

Holajter, Leonard M.

0

250

0

250

Not Reviewed

Holesinger, Clark W.

0

250

0

250

Not Reviewed

Hughes, Mark J.

0

250

0

250

Not Reviewed

Janeway, Kathryn C.

0

250

0

250

Not Reviewed

Kelly, Hubert E.

0

250

0

250

Not Reviewed

Kendall, Michael C.

0

250

0

250

Not Reviewed

Kotz, James C.

0

250

0

250

Not Reviewed

Kotz, James C.

0

250

0

250

Not Reviewed

McGillvrray, Roderick D.

0

250

0

250

Not Reviewed

Mitchner, Kent D.

0

250

0

250

Not Reviewed

Mullisn, Earl C. Jr.

0

250

0

250

Not Reviewed

Murphy, Benjamen W.

0

250

0

250

Not Reviewed

Page, Paul J.

0

250

0

250

Not Reviewed

Rees, David F.

0

250

0

250

Not Reviewed

Scott, David J.

0

250

0

250

Not Reviewed

Smith III, Jess, M

0

250

0

250

Not Reviewed

Storms, Scott

0

250

0

250

Not Reviewed

Truman, Karl N.

0

250

0

250

Not Reviewed

Watson, Mark E.

0

250

0

250

Not Reviewed

Wolfe, Stephen P.

0

250

0

250

Not Reviewed

Wyser, David

0

250

0

250

Not Reviewed

Garvin, Mark A.

115

0

0

115

Not Reviewed

I suspect that the Court thought I was the one who unnecessarily ran up the expense bill. In reality it was the Commission that did that, no doubt as part of a deliberate strategy. Evidence? The Commission wouldn't even respond to my settlement offer (which was nearly the same as the 30 day suspension I ended up receiving) and refused to stipulate to facts even though probably 98% of facts could have been stipulated to. Instead of a stipulation, the Commission insisted on presenting evidence at an 11 1/2 hour hearing. The courtroom was filled with DC staffers who apparently were there to assist or watch the spectacle of the Commission's leading critic be put on trial. Of course, the Commission undoubtedly knew I would be stuck with the bill for the court reporter and the hearing officer. The Commission undoubtedly also knew I would have to pay for the considerable amount of time the hearing officer spent preparing the 85 page report, which had very few citations to the record and which contained reasoning that appeared to be completely rejected by the Court.

After receiving the Commission's expense bill following the Court's decision, I asked the Court to reconsider in light of how little of the case the Commission had won and presented a sworn statement that the Commission had never talked to me or my witnesses during the investigatory stage, that I had offered a reasonable settlement offer that would have allowed the proceeding to be resolved early on, and that we had attempted to stipulate to facts to avoid a lengthy trial but the Commission refused. In short, the vast majority of the expenses were driven by decisions the Commission had made. I also also asked that the Commission be ordered to itemize the expenses which is expressly required by the rules.

In response, the Commission's attorney, as he had done in the complaint falsely representing to the Court that I had engaged in an ex parte communication in a second charge tossed out by the Court, simply started making stuff up in court filings. I counted at least three outright fabrications. The DC attorney claimed that the Commission had been in contact with me following my response to the grievances. It was a lie. It never happened. Second, the DC attorney reported to the Court that the Commission had asked for a settlement meeting with me and that that meeting lasted three hours. Again, the DC's attorney lied. It never happened. Third, the Commission's attorney in the Response reported to the Court that I refused to admit to a rule violation as part of settlement. Again, another lie. In the written settlement offer I made, which the Commission didn't respond to, I expressly agreed to admit to a violation.

The Commission's attorney never offered any proof whatsoever in support of these three claims and apparently didn't want to make his false statements the form of an affidavit. Nonetheless, there is still a disciplinary rule that requires that attorneys show candor to the Court. I don't believe Disciplinary Commission attorneys practicing before the Indiana Supreme Court should be exempted from following that rule. Attorneys being disciplined and attorneys prosecuting discipline, should be held to the same ethical standards.

Nonetheless, the Indiana Supreme Court refused to reconsider the expense bill (and didn't require an itemization) leaving me with no choice but to walk away from practicing law. On Wednesday I filed paperwork to put my license in "inactive" status.

So I, an attorney who had never been disciplined in my over 26 years of practicing law, lost my right to practice law in the State of Indiana because I sent a private email criticizing a judge in which I accidentally got a couple minor facts wrong. (Never mind NY Times v. Sullivan which says my speech was protected by the First Amendment.) My hope is that my case FINALLY causes the Indiana Supreme Court to take some responsibility for the too often outrageous conduct of the Disciplinary Commission, which is an arm of the Court, and adopt long needed reforms in how the Commission operates, including more transparency and accountability. Indiana attorneys and the public deserve better.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.